Strike Down Statutes Resolution I like the idea of a resolution that "the USSC should strike down as unconstitutional one of the following statutes . . . ." The statutes I would HIGHLY recommend:

(1) the Prison Litigation Reform Act (PLRA),
(2) the Antiterrorism and Effective Death Penalty Act (AEDPA),
(3) the Illegal Immigration Reform and Responsibility Act (IIRIRA),
(4) the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA),
(5) the Contract With America Advancement Act (CWAAA)
(6) the Adoption and Safe Families Act (ASFA)

What these statutes have in common: they were all passed in the last 10 years (by a conservative Congress and signed by Clinton), so there is lots and lots of very current and very interesting literature defending and criticizing them.

There are, however, several problems to consider with a "USSC strike down" resolution:

(1) No one advocates striking down an entire Act, so we really could not require the Aff to strike down an entire Act of Congress. However, Affs could get very, very, very small if they were to strike down only one section of a statute. For an example of how these things work, in a recent 11th Circuit case, United States v. Michael Williams, the court struck down the pandering provision of the PROTECT Act, a federal child pornography statute. The pandering provision prohibited the pandering of materials purported to be child pornography, so that provision was invalidated, but the rest of the PROTECT Act remains constitutional (e.g., the prohibition on the possession, production, sale, etc. of child pornography). We would need to devise a way to require the Aff to strike down a signifant portion of a statute, or at least recognize that there would be theoretically hundreds if not thousands of potential Affs.

(2) The most significant issue I foresee with a "USSC strike down" resolution is the obvious "Congress should repeal" counterplan. This CP obviously mitigates the potential for there to be thousands of Affs because there would be not very many that could withstand a "Congress should repeal" CP. Unless Affs could be creative in finding reasons for the Court to act, these debates could get seriously repetitive and I'm not sure the literature is very good at considering the possibility of Congressional repeal when discussing the unconstitutionality of a statute. If I were still debating, I would hate to have the same Court Strike Down vs. Congress Repeal debate every round. Others, however, may disagree. I am curious to hear people's thoughts.

Incidentally, the Congress CP was what motivated my proposed resolution in which the USSC must enlarge Congressional authority (by overruling one of its decisions limiting Congressional authority). The only agent CP to such an Aff would be a constitutional amendment because Congress could not simply pass a statute on the basis of authority that the USSC has previously stated it did not have (as with the RFRA, the VAWA, and many other examples I list in my first post).

(3) One way of imposing a limit on the Aff and encouraging alternative Neg CPs would be to specify the basis on which the statute must be ruled unconstitutional -- for example, "the USSC should strike down as unconstitutional on the basis of the First/Fifth/Fourteenth Amendment of the U.S. Constitution one of the following statutes . . . ." This way, the Aff is at least forced to defend a particular type of statute -- one that violates the chosen Amendment. I think the Fourteenth would provide the richest literature, because Affs could debate equal protection, procedural due process, and substantive due process (fundamental rights) as well as Congressional power (because section 5 of the 14th amendment is one of the more powerful sources of authority for Congress to enact legislation, notwithstanding recent neutering of such authority by the USSC). I also think that this addition to the resolution could lead to incredibly interesting CP debates involving competiting constitutional amendments (the 1st Amendment CP vs. a 14th Amendment Aff would be great fun to debate and there is actually lots and lots of literature on such things).

Lindsay Harrison 

posted by Lindsay at 5/11/2006 10:47:00 AM ¶